I-601 and I-601a Unlawful Presence Waivers: The 3 & 10 Year Bars
Understanding What You’re Up Against – The Law
The 1996 Illegal Immigration Reform and Responsibility Act (IIRAIRA) created three year, ten year, and permanent bars on admission to the U.S. for a variety of immigration status violations.These bars apply widely and affect immigrants who have family in the U.S., have worked and paid taxes in the U.S., and in many cases are otherwise eligible for permanent resident status.
The three year bar to re-entry into the U.S.: The three year bar applies to individuals who have been unlawfully present in the United States for a continuous period of more than 180 days (6 months), but less than one year, and who voluntarily depart the U.S. The bar is triggered by the act of departing the U.S., even if to consular process to obtain an immigrant visa. Yes, this may apply to you even if you are married to a U.S. citizen.
The ten year bar to re-entry into the U.S.: The ten year bar applies to individuals unlawfully present in the U.S. for an aggregate period of one year or more who depart voluntarily (aggregate = CIS adds up all time in US without lawful presence, even if from different periods of time and different stays). Unlawful presence begins to accrue when the period of authorized stay expires or after an entry to the U.S. without inspection. Again, the bar is triggered by the act of departing the U.S., even if to consular process to obtain an immigrant visa. Yes, this may apply to you even if you are married to a U.S. citizen.
The Waiver Option
If the immigrant is married to a U.S. citizen or lawful permanent resident, or has a U.S. citizen or LPR parent, a WAIVER MAY BE AVAILABLE for 3 & 10 year bars but not for the permanent bar. To qualify for this waiver, which if approved, allows the immigrant to lawfully re-enter with the immigrant visa and not wait outside the US for 3 or 10 years, the immigrant must prove that his or her USC or LPR spouse or parent will suffer EXTREME HARDSHIP if the waiver is not approved.
3 and 10 year bar Waiver Procedure
The Provisional I-601A Waiver Process vs. Traditional I-601 Waiver Filing Process
The standard I-601 waiver process: Traditionally, if an immigrant enters the US illegally and cannot prove legal entry, the immigrant cannot apply for a green card in the US through the adjustment of status process but must interview for their green card at a consulate abroad. The catch – once you leave the US, you can trigger the 10 year bar of re-entry and need to apply for a 10 year bar waiver. The consulate interview will happen, the immigrant is refused the visa but is usually informed that the immigrant can now apply for a waiver (which means their qualifying relative for the waiver in the US files the case in the US for the immigrant) but must stay outside of the US until the waiver is decided and approved. The immigrant is then contacted again by the consulate to either send in more documents to finish processing or attend a second interview to update the case and make sure the immigrant is eligible to enter the US now that the waiver has been obtained.
This process can typically take 7 months or more for the waiver to be decided in the US (the immigrant must stay outside the US during this time) plus another 1 -2 months until the consulate can finalize the Immigrant Visa, issue it, and allow the immigrant to enter the US and finally be reunited with their loved one(s). This is a long time to wait for a decision and a long time to be separated from family in the US, although this is much shorter than the waiting periods as recent as 1-2 years ago.
The provisional waiver: I-601a process: In March 2013, USCIS announced a new policy to help keep those married to US citizens avoid the longer waiting periods that the traditional I-601 waiver process creates that requires that the immigrant wait abroad for the waiver decision to be made. The provisional waiver process allows the immigrant to apply for the I-601 waiver for unlawful presence (whether 3 or 10 year bar) ahead of time, while still in the US and prior to the consulate interview abroad. The immigrant stays in the US with their spouse while the waiver is being decided, drastically reducing the time the immigrant has to be separated from their spouse. When the waiver is approved, the immigrant travels to their interview at the consulate abroad and if successfully interviews with the successful provisional waiver already approved and no other grounds of inadmissability are found by the consulate, the immigrant is abroad for merely days, not months. Their lives are not uprooted, long term family care does not have to be arranged and jobs are not lost. It is an ideal situation for many immigrants and their families.
Huge News – I-601A Provisional Waiver Is Now Available to Those Being Sponsored by Permanent Residents, those over the age of 21 sponsored by US citizens, Diversity lottery winners, and Employers!
The main problem with the provisional waiver program is that it used to severely limit those who qualified to take advantage of it. But as of August 29, 2016 – the Provisional Waiver Program process has been expanded to anyone who has the 3 or 10 year bar and who has a LPR (green card holder) parent or LPR spouse or a US citizen (USC) parent or USC spouse who will suffer extreme hardship if the immigrant is not allowed to come back to the US during that 3 or 10 year period. The immigrant visa petition also no longer has to be filed by an immediate relative (to benefit a spouse, child under 21 or parent of US citizen). This means that the Provisional Waiver is now open to these additional new categories – those who are applying for their green cards based on: employment, LPR parent sponsorship, adult children of US citizens who are married or unmarried, or an immigrant visa petition filed by a US citizen brother or sister. These are new categories in addition to those previously allowed – those petitioned by a US citizen spouse or parent.
Remaining Limits of the provisional waiver program:
- The provisional waiver or I-601a filing only covers unlawful presence. No criminal waivers, misrepresentation waivers (for lying to CIS or using fake documents to enter the US), prostitution waivers, etc.
- The Applicant for Waiver must currently be in the US. If the immigrant is already abroad, the immigrant cannot re-enter the US to file the waiver.
- An Immigrant Visa filed by an the family member, employer, or as part of the diversity lottery must be approved first.
- Immigrants with removal orders do not qualify unless the immigrant has an approved I-212 Advance Permission to Enter the US After Removal Application.
- There are still no appeals and no notices of intent to deny (to give you another chance to fight for your case) issued by CIS if they think your case is not strong enough. Your only option would be to refile so be careful – make sure you put your strongest arguments up the first time around and document them well!
These are just some of the main disqualifications from the provisional waiver program. There are others. Make sure you consult with a competent, licensed immigration attorney about whether you qualify for the I-601a vs the I-601 process before filing anything!
If the immigrant has to file a waiver case based on any other ground than unlawful presence, then the immigrant must go through the traditional I-601 waiver process. For example, did you use a fake green card or fake documents to get into the US? That’s misrepresentation and you would have to file a misrepresentation waiver as well as a 10 year bar waiver if you have stayed in the US for a year or more without valid immigration status (i.e., overstayed or been undocumented over a year in the US and then leaves the US – even if to interview for a green card at a consulate abroad).
Warning: Be very careful when deciding to go through with the provisional waiver process. Make sure you hire an attorney who has experience with inadmissability waivers. Notarios and unlicensed attorneys are jumping on the bandwagon to convince immigrants that they can do the same work at half the price but remember, you can still end up in removal proceeding while awaiting your I-601 case to be decided – the process does not guarantee you the right to live in the US legally! You are exposing yourself to CIS when you start this process – make sure it is worth the risk with the right person representing you and putting your best case forward to minimize the risk of what could happen if your case is denied and ICE now knows about you, especially if you have lived under the radar for years.
So you Think You Need a Waiver, regardless of whether you’re filing an I-601 or an I-601a package.
How Strong is Your Case?
What is Extreme Hardship?
The key term in the provision is “extreme” and thus, only in cases of real actual or prospective injury to the United States national or lawful permanent resident parent or spouse will the bar be removed. Common results of the bar, such as separation, financial difficulties, etc., in themselves are insufficient to warrant approval of an application unless combined with much more extreme impacts. Applicants are encouraged to submit as much documentary evidence as possible proving that failure to receive the waiver requested would result in extreme hardship to your US citizen spouse or parent.
Consulates differ on what factors in a case are more persuasive than others. The largest consulate in the world with the most waiver applications is Ciudad Juarez, Mexico. As of 2005, the CIS office attached to this consulate, considered the following as types of factors that are relevant to deciding whether the US citizen parent or spouse will suffer “extreme hardship” (the consulate will also consider other factors, not listed here):
HEALTH – Ongoing or specialized treatment requirements for a physical or mental condition;availability and quality of such treatment in your country, anticipated duration of the treatment; whether a condition is chronic or acute, or long-or short-term.
FINANCIAL CONSIDERATIONS – Future employability; loss due to sale of home or business or termination of a professional practice;decline in standard of living; ability to recoup short-term losses;cost of extraordinary needs such as special education or training for children;cost of care for family members (i.e., elderly and infirm parents).
Loss of opportunity for higher education;
lower quality or limited scope of education options;
disruption of current program;
requirement to be educated in a foreign language or culture with ensuing loss of time for grade;
availability of special requirements, such as training programs or internships in specific fields.
PERSONAL CONSIDERATIONS –
Close relatives in the United States and /or your country; separation from spouse/children; ages of involved parties;length of residence and community ties in the United States.
SPECIAL FACTORS –
Cultural, language, religious, and ethnic obstacles;
valid fears of persecution, physical harm, or injury; social ostracism or stigma;
access to social institutions or structures.
Heather’s Alerts and More Detailed Info on Waivers:
Heather’s Videos about I-601 Waivers:
How to Avoid Common Mistakes in Unlawful Presence Waiver Cases
How to Avoid Even More Common Mistakes in Unlawful Presence Waiver Cases
Avoiding and Working with the 3 & 10 Year Bars
FAQ: Is Unlawful Presence Waiver a Good Idea?
Mexican Immigrant Granted Waiver Despite Illegal Entry and Unlawful Presence
The Pros, Cons, and Future of the New Proposed Provisional Waiver Program for I-601 Waivers
Unlawful Presence Waiver Granted for US Citizen’s Mexican Wife with Prior Denial
Ukrainian Fiance Visa Holder Who Overstayed Wins Unlawful Presence Waiver In Moscow
WARNING:An attorney or a consultant who says s/he can get you this waiver for $1500 and does not take the time to find out the specifics of your immigration history, your spouse’s history and talks about these factors with you to see how strong your waiver argument(s) could be, is not the right attorney for you. Are you going to feel confident that your future together has the best chance with someone who won’t give you an in-depth evaluation? Waivers take a lot of work and time to compile; $1500 is an extreme low quote and indicates that the attorney is not going to spend the necessary time preparing your case. Be careful.
Contact us today to find out if you are eligible for a waiver and the chances of a waiver being approved (if Heather is your attorney) in your case! There are many different factors that consulates consider and waiver cases are big undertakings – Don’t run out of time to make a strong case.
Heather has a VERY HIGH APPROVAL RATE on waiver cases, with waiver approvals from some of the world’s toughest CIS offices (including Lima, Peru– handling South American countries, Moscow, Russia – handling former Soviet Union countries and Bangkok, Thailand – South Asia, Australia), as well as 99% approvals on Mexican cases (as of 6/13)* with only 1 case ever placed in the backlog. She had experience with consulates all over the world prior to waivers being centralized for filing in the US most recently.
A Recent Success story:
(Obtained waiver for U.S. citizen spouse who was faced with potentially losing his wife due to the 10 year bar; CIS office: Ciudad Juarez, Mexico) Actual letter from client:
“To whom it may concern:
I met my wife in 2001 and soon fell in love, Six months later we where married in Ventura California . I knew well before we where married that my wife was here “undocumented” but thought it would be easy to get her a green card since I am a US citizen, Boy was I wrong! We went to a “cut rate” notario, trying to save money, Mistake #1! We then went to a immigration attorney in Los angeles who quoted me 1000.00 to take care of the rest of the paper work we needed, Mistake #2. It turned out we needed a “Hardship waiver” for my wife and would have to travel to El Paso Texas
and cross the border to the US consulate.
If everything went OK, My wife would have a green card and return with me. If not, she would have to stay in
Mexico for 6 months to a year, waiting for approval. This scared me to death! We had never spent the night apart since we where married, I could not stand the thought of leaving her there! I started reading as much as I could on the internet and was recommended to Heather Poole in Pasadena , Ca. My wife and I went to see her for a consultation, and I am VERY glad we did! Heather and her assistant Carla went above and beyond to get our necessary papers done within a month ( almost unheard of!) and off we went to Mexico
. We had to spend almost 2 weeks there, First the medical appointment, Then the “interview” and then the “Hardship waiver interview”.
Now this is what impressed me most about Heather! EVERYTHING she said would happen happened EXACTLY like she said it would! While staying at the motel and waiting day after day, We met quite a few people and got to talking. I was SHOCKED at how many people where totally unprepared and did not have the documentation they needed, Most of these people went away very unhappy to say the least! Everything went smoothly for us, and within one hour of my wife receiving her new green card, we where back across the border and on our way home!
Our lives have changed so much within the last six months, My wife has her new Social Security card, Drivers license, etc……She now has more ID than I do! I can honestly say we owe all of this to Heather and Carla, We will never forget how they helped us! If anyone doubts this, Feel free to call me anytime and I will be glad to tell them. Thanks.”
Recent Success Story
(Obtained waiver for U.S. citizen spouse who was faced with potentially losing her husband due to the 10 year bar; CIS office: Ciudad Juarez, Mexico) Actual letter from client:
“Heather, I chose you to represent me because you are very knowledgeable and confident. You took a lot of time with me during the initial consultation to answer questions and you were able to give me your honest opinion on the case. I would recommend the firm to others – the quality of services were excellent, the fee charged was reasonable, we were regularly informed about the progress of our case, we were treated courteously by your staff, and we got the outcome we were hoping for.
Very good work with great outcome! Thanks again for all your time and hard work. We could not hyave gone through the waiver process alone. It made all the difference to work with someone so knowledgeable of ushc a complicated and stressful process.”
Recent Success Story
(Obtained waiver for US citizen spouse who was faced with losing his wife due to the 10 year bar); CIS office: Ciudad Juarez, Mexico) Actual letter from client:
“We chose you, Heather, to represent us in our waiver case because of your 100% track record and we heard that you are the “Best in the West.” We are happy that our case resulted in the outcome we hoped for. You have a good team.”
Update on Ciudad Juarez Filings 5/2013
The CIS Pilot Program and Direct waiver filing option is no longer available in Mexico. All cases, except those rarely expedited for direct filing at the consulate, are now filed inside the US. The immigrant must still interview in CDJ if from Mexico to obtain the right for their spouse to file the waiver in the US while the immigrant waits abroad in Mexico for a decision (unless the immigrant qualifies for a provisional I-601a waiver).
Update on Ciudad Juarez Filings 4/2010
The pilot program still exists in Mexico, despite rumors that it has ended. Due to increased consulate bombings in Mexico, the CIS office attached to the consulate has cut down on the number of staff that are available each shift to review waiver filings. What this has meant so far to our clients is a delay of an additional 4 days on average to receive either a decision or referral (into the backlog) notice from CIS. Clients need to be prepared to wait an average of 7 days from the time of waiver submission to receive an answer.
Update on Ciudad Juarez Filings 1/2009
Ciudad Juarez, Mexico, is the home of all unlawful presence & misrepresentation waivers for Mexican citizens. Recently, the consulate and attached CIS has moved to a larger location and has changed the process for arranging waiver interviews. In the past, through the “Pilot program”, immigrants were able to use the call in center to make a waiver appointment before they even left the U.S. to pursue the Immigrant Visa interview. The applicant knew the dates/times for both the IV interview and the waiver interview. Now, applicants must wait until the IV interview and receive a paper from the consul indicating that they have triggered a ground of inadmissability (ten year bar, etc.) before the applicant is allowed to schedule an appointment to file the waiver. The waiver appointments can usually be made within 1 -2 weeks from the IV interview date. This is a faster turnaround then we have been used to lately for interviews. The applicant who does not prepare ahead of time, however, may not have much time to prepare a strong waiver and should delay making this waiver appointment until a strong case can be compiled. The applicant (immigrant) must stay in Mexico until the waiver is approved.
The process for submitting the waiver has also changed. Now, applicants submit the waiver at a long line of consul windows, pay $8 for a DHL envelope and are told to wait at home for an answer. CIS then uses DHL to deliver either an approval notice, a backlog notice, or a denial notice in the mail to the applicant, usually within 1 day after the waiver submission. If the waiver is approved, the DHL envelope will also contain instructions on which bridge the applicant may cross with the package containing their Immigrant Visa. Prior to this procedure, applicants were notified, many times, the same day whether or not their waiver package was approved.
Juarez is reporting a 14-16 month processing period for those new cases and already existing 9,000 cases referred to the backlog (i.e., not immediately approvable within a day of the interview). There is usually no way to speed up this processing time unless an extreme, emergent life-threatening situation arises. The backlog takes so long because CIS only has 4 officers to decide over 40 cases each per day and has few temporary staff to help process the backlog cases. CIS is even sending backlog cases to other smaller CIS offices in Mexico to help with the backlog.
CIS officials are not interviewing applicants but are instead basing their entire decision for the waiver on the documents submitted. Officers only spend approximately 10 minutes reviewing a particular case, given the amount of cases they have to review every day. The consulate officers only approve about 50% of cases they see every day. If there is a separate A file to examine or FBI criminal hits or arrests, the case will likely be referred into the backlog unless these issues can be addressed sufficiently when the waiver documents are submitted. Thus, it is even more crucial than ever for applicants to submit a strong package since there is no one to answer to when a decision is received in the mail and the potential for backlog is now over a year.
* Success rates do not indicate or guarantee that your particular case will be approved. Every case is different and it is unethical and against the law for any Attorney to guarantee a successful result or outcome.The one case I lost was due to a misrepresentation issue; the client did not divulge facts to me about their immigration history that CIS knew and used against my client.
TO BOOK AN ATTORNEY CASE EVALUATION APPOINTMENT, CALL: 877.486.2678.